EXPERT MEETING OCCUPATION AND OTHER FORMS OF ADMINISTRATION OF FOREIGN TERRITORY International Committee of the Red Cross 19, avenue de la Paix 1202 Geneva, Switzerland T +41 22 734 60 01 F +41 22 733 20 57 E-mail: [email protected] www.icrc.org © ICRC, March 2012 EXPErt MEETING OCCUPATION AND OTHER FORMS OF ADMINISTRATION OF FOREIGN TERRITORY Report prepared and edited by Tristan Ferraro Legal adviser, ICRC CONTENTS FOREWORD 4 ACKNOWLEDGEMENTS 6 INTRODUCTION 7 SUMMARY 10 FIRST MEETING OF EXPERTS: THE BEGINNING AND END OF OCCUPATION 16 PART ONE: THE BEGINNING OF OCCUPATION 17 A. THE PRESENCE OF FOREIGN FORCES: A NECESSITY FOR THE ESTABLISHMENT AND MAINTENANCE OF OCCUPATION? 17 B. THE EXERCISE OF AUTHORITY BY FOREIGN FORCES 19 C. THE NON-CONSENSUAL NATURE OF BELLIGERENT OCCUPATION 20 D. THE CONCEPT OF INDIRECT EFFECTIVE CONTROL 23 E. DURATION AND GEOGRAPHICAL SCOPE OF OCCUPATION 24 F. THE LEGAL FRAMEWORK APPLICABLE TO THE INVASION PHASE 24 PART TWO: THE END OF OCCUPATION 26 A. EVALUATING THE END OF OCCUPATION: A THORNY TASK 27 B. THE CRITERIA FOR DETERMINING THE END OF OCCUPATION 28 C. THE FUNCTIONAL APPLICATION OF OCCUPATION LAW AND THE NOTION OF RESIDUAL RESPONSIBILITIES 31 PART THREE: MULTINATIONAL OCCUPATION 33 A. THE APPLICABILITY OF OCCUPATION LAW TO UN OPERATIONS 33 B. OCCUPATION CONDUCTED BY A COALITION OF STATES 34 APPENDIX 1: BACKGROUND DOCUMENT BY PROF. MICHAEL BOTHE 36 APPENDIX 2: BACKGROUND DOCUMENT BY PROF. ADAM ROBERTS 41 APPENDIX 3: AGENDA AND GUIDING QUESTIONS AIMED AT FRAMING THE DISCUSSIONS 50 APPENDIX 4: LIST OF PARTICIPANTS 53 SECOND MEETING OF EXPERTS: DELIMITING THE RIGHTS AND DUTIES OF AN OCCUPYING POWER AND THE RELEVANCE OF OCCUPATION LAW FOR UN ADMINISTRATION OF TERRITORY 54 PART ONE: DELIMITING THE RIGHTS AND DUTIES OF AN OCCUPYING POWER 56 A. ARTICLE 43 OF THE HAGUE REGULATIONS OF 1907 AND ARTICLE 64 OF THE FOURTH GENEVA CONVENTION AS KEY PROVISIONS FOR ASSESSING THE SCOPE OF AN OCCUPYING POWER’S RIGHTS AND DUTIES 56 B. THE ROLE OF HUMAN RIGHTS LAW IN OCCUPIED TERRITORY 61 C. TRANSFORMATIVE OCCUPATION 67 D. PROLONGED OCCUPATION 72 2 PART TWO: THE RELEVANCE OF OCCUPATION LAW FOR UN ADMINISTRATION OF TERRITORY 78 A. THE DE JURE APPLICABILITY OF OCCUPATION LAW TO UN ADMINISTRATION 78 B. THE RELATIONSHIP BETWEEN OCCUPATION LAW AND THE SECURITY COUNCIL RESOLUTION ESTABLISHING THE INTERNATIONAL ADMINISTRATION 81 C. THE DE FACTO APPLICATION OF OCCUPATION LAW TO UN ADMINISTRATION 84 APPENDIX 1: BACKGROUND DOCUMENT BY DR SYLVAIN VITÉ 88 APPENDIX 2: BACKGROUND DOCUMENT BY PROF. STEVEN R. RATNER 96 APPENDIX 3: AGENDA AND GUIDING QUESTIONS AIMED AT FRAMING THE DISCUSSIONS 105 APPENDIX 4: LIST OF PARTICIPANTS 108 THIRD MEETING OF EXPERTS: THE USE OF FORCE IN OCCUPIED TERRITORY 109 PART ONE: DELIMITING THE LEGAL FRAMEWORK APPLICABLE TO THE USE OF FORCE IN OCCUPIED TERRITORY 110 A. DEFINING THE LEGAL REGIMES APPLICABLE 110 B. THEORIES AND CONDITIONS FOR DETERMINING THE LEGAL MODEL APPLICABLE 112 C. THE ROLE OF HUMAN RIGHTS LAW IN REGULATING THE USE OF FORCE IN OCCUPIED TERRITORY 116 D. THE ROLE OF OCCUPATION LAW IN REGULATING LAW ENFORCEMENT ACTIVITIES 119 PART TWO: THE APPLICATION OF THE ‘CONDUCT-OF-HOSTILITIES’ MODEL IN OCCUPIED TERRITORY 120 A. WHEN DOES THE ‘CONDUCT-OF-HOSTILITIES’ MODEL COME INTO PLAY? 120 B. THE LEGAL CLASSIFICATION OF HOSTILITIES ON OCCUPIED TERRITORY 124 C. DETERMINING THE LEGAL FRAMEWORK GOVERNING THE USE OF FORCE IN “GREY AREAS” 128 APPENDIX 1: BACKGROUND DOCUMENT BY PROF. ANDREAS PAULUS 131 APPENDIX 2: AGENDA AND GUIDING QUESTIONS AIMED AT FRAMING THE DISCUSSIONS 145 APPENDIX 3: LIST OF PARTICIPANTS 147 3 FOREWORD Occupation has been a recurring condition in the history of armed conflict. Belligerents have often resorted to the effective control of a foreign territory (or parts thereof) in order to subjugate their adver- saries and achieve their objectives. Long-standing legal efforts to regulate these situations have produced the rules that now govern belligerent occupation and form an important area of international humani- tarian law (IHL). In fact, belligerent occupation is regarded as a species of international armed conflict and treated as such by the relevant instruments of IHL, particularly the Hague Regulations of 1907 and the Geneva Conventions of 1949. Occupation was initially perceived as being a matter of inter-State relationships. Based on the premise that occupation was a temporary situation neither causing nor implying any devolution of sovereignty, occupation law, as reflected in the Hague Regulations of 1907, was geared mainly towards preserving the interests of the occupied State and its institutions. It also presumed a state of peaceful coexist- ence between the occupant and the local population and insisted on the former involving itself as little as possible in managing the lives of those temporarily under its rule. Occupation law – in its early stages – was not aimed primarily at ensuring comprehensive protection for the individuals living under occupation; it concentrated on maintaining the sovereign rights of the ousted government until the conditions for its return were agreed upon by the belligerents. Obviously, the nineteenth-century realities on which occupation law was based no longer exist. To an increasing degree, contemporary occupation is characterized by tensions between the occupying power and the local population (or at least some sections of the population), and by shifts in the role played by the occupying power in administering the occupied territory – which often means full-fledged exercise of foreign authority. As a result of these developments, people living under occupation have, increas- ingly, suffered the adverse consequences of occupation, which can be aggravated by the persistence of the situation. The experiences of World War II prompted a number of important attempts, immediately after the end of the war, to improve the law by focusing attention on the welfare of those living under occupation. The need to enhance protection for these people became one of the main objectives of the Geneva Conventions of 1949, particularly the Fourth Geneva Convention “relative to the Protection of Civilian Persons in Time of War,” which filled in the gaps in the law at the time. The Fourth Geneva Convention of 1949 and Protocol I of 8 June 1977 additional to the four Geneva Conventions provided for substantial development of the legal protection afforded by IHL to those living under occupation, notably by ensuring that their basic needs were met. IHL was adjusted with a view to incorporating the new realities of occupation, which required, more than in the past, attending to the preservation of the interests of the people under occupation. This significant step in the evolution of the law – the advent of the Geneva Conventions of 1949 – not- withstanding, occupation law continues to face difficult challenges, as recent occupations have shown. In fact, occupying States have repeatedly contested the applicability of occupation law to situations of effective foreign control over territory, which clearly shows their reluctance to be labelled as occupying powers and/or to see their actions constrained by this body of law. This trend of denying the applica- bility of occupation law can be explained partly by the fact that the concept of occupation has a pejora- tive connotation and has often been characterized, usually by its critics, as “unlawful” and contrary to the overall objective of international peace and security set by the United Nations Charter. References to “unlawful occupation” can be misguiding, as they confuse the issue of the lawfulness of the resort to the use of force with that of the rules of conduct to be applied once armed force has been used, and therefore also obscure the fundamental distinction between jus ad bellum and jus in bello. Regarded from a purely IHL perspective, occupation law applies equally to all occupations, whether or not they are the result of force used lawfully within the jus ad bellum.1 1 As the US military tribunal stated in the celebrated Hostages trial, “international law makes no distinction between a lawful and an unlawful occupant in dealing with the respective duties of occupant and population in occupied territory (…) Whether the invasion was lawful or criminal is not an important factor in the consideration of this subject.” US Military Tribunals at Nuremberg, USA v. Wilhem List et al., Trials of War Criminals before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. 11 (1950), p. 1247. 4 Recent occupations have demonstrated that even when States consent to be bound by occupation law in the course of their military operations abroad, they sometimes take a self-serving approach to its application. Some States have even taken the view that occupation law cannot cope with the political, humanitarian and legal challenges created by contemporary occupation; they argue that these situations are very different from classical occupation and should be governed by rules that are more specific than those contained in occupation law at present. The emergence of such views, particularly in the wake of the 2003 occupation of Iraq, has placed occupa- tion law under considerable strain. Contemporary occupations have also raised a number of important legal questions directly of consequence for those living under or administering the occupation. These include questions related to the following issues: the beginning and end of occupation, the administra- tion of occupied territories by coalitions, the occupying power’s rights and duties, the use of force in occupied territory and the potential application of occupation law to the United Nations’ administration of foreign territory. All these require more attention from the legal community. On the basis of the issues listed above, as well as others that have recently posed a challenge to occupa- tion law,2 the International Committee of the Red Cross (ICRC) concluded that it was necessary to ana- lyse whether and how far the rules of occupation law might have to be reinforced, clarified or developed.